Cylaw

TASSOS PAPADOPOULLOS ν. KYRIX PUBLISHING CO. LTD., AND OTHERS (1963) 2 CLR 290

(1963) 2 CLR 290

1963 May 10

[*290]

[WILSON, P., ZEKIA, VASSILIADES AND JOSEPHIDES, JJ.]

TASSOS PAPADOPOULLOS,

Appellant-Plaintiff,

KYRIX PUBLISHING CO. LTD. AND OTHERS,

Respondents-Defendants.

(Civil Appeal No. 4409).

Defamation-Libel published in a newspaper-The right approach-Both the citizen must be protected from unwarranted attacks by the press and the freedom of the press, a blessing in any civilized community, must not be unduly curtailed.

Defamation-Libel-Meaning of the words complained of-Evidence-The Court is not bound to adopt the opinion of the witnesses regarding the meaning in which they understood the words-The Court is entitled to form its own opinion on the matter.

The defendants published in the issue of their newspaper “Ethniki” of the 18th June, 1960, an article alleged by the plaintiff to be defamatory of him. He sued the defendants in damages for libel. The defendants by their defence pleaded that the article complained was not defamatory and they further put up the defence of fair comment. At the trial the Court heard witnesses called by the parties regarding the meaning of the words complained of. The trial Court approached the case in the light of the principle that both the citizen must be protected from unwarranted attacks by the press and the freedom of the press, a blessing in any civilized community, must not be unduly curtailed. The trial Court after stating that they were not bound to adopt the opinion of the witnesses regarding the meaning in which they understood the words complained of held that the article was not defamatory of the plaintiff and dismissed the action with costs.

The article subject matter of these proceedings is set out in full in the judgment of the trial Court appearing in this Volume immediately following the judgment of the High Court in this case. A translation in English of the article is appended to the judgment of the trial Court (post).

On appeal by the plaintiff, the High Court (ZEKIA, J. dissenting) upholding the judgment of the trial Court:-

Held, (1) we find ourselves unable to accept the submissions made against the trial Court’s rulings on the admissibility of evidence. [*291]

(2) On the material before them the trial Court made in our opinion, the proper approach to the case and reached correct conclusions.

(3) It has not been suggested that this was not the correct approach to the case. We all think it was. And it seems to us that the trial Court considered carefully, every aspect of the complaint, in that light.

(4) In conclusion the trial Court took the view “that the article complained of is not defamatory of the plaintiff”. We agree with that conclusion. We think that the innuendos alleged, mostly far fetched in themselves, have not been established to the satisfaction of the Court which has therefore rightly dismissed the action.

Appeal dismissed.

Note.-The translation in English of the article complained of is as follows:-

“SON-IN-LAW AND FATHER-IN-LAW.

No one has the right to forget in what way Tassos Papadopoullos and the other people of his age were proclaimed the first as Minister of the Interior and the others in the Ministries under construction and without any executive power and this… over 15 months ago.

Also the fact cannot pass unnoticed that the big importer of electric materials, Mr. Gavrielides, father-in-law (just a month ago) of the Mr. Minister of the Interior, was appointed President of the New Seven-member Committee of the Electricity Authority of Cyprus, having been proposed by His Excellency the President.

Naturally there is no intention to question any of the qualifications of the newly appointed President. We suppose though that in this Island however retarded the English masters may have been presenting it to be up to this day, other Cypriots qualified and suitable for posts could have hen found from outside the circle of the young promising and guided ministers and their in-laws and relations by marriage. But over and above that, there is something else which touches upon the boundaries of a scandal. Mr. Gavrielides is not only a ministerial father-in-law, but he is also importer on a big scale of electrical materials and the presidentship in which he has been elevated is the presidentship [*292] of the Electricity Authority which exclusively concerns itself with the generation of electric current and is in need of electrical goods. What will, therefore, happen during the daily tenders which the President of the Electricity Authority will be asking from the importers of electrical goods? This is the question, which is a scandal and for which an answer of the responsible ones becomes an essential necessity not only towards the Cyprus importers, whose wrath is fully justified hut also towards all of us who wonder what else lies in store for us. We shall revert.”

Appeal.

Appeal against the judgment of the District Court of Nicosia (Loizou and Ioannides, D.JJ.) dated the 10.11.62 (Action No. 2850/60) dismissing plaintiff’s action for damages for libel contained in the issue of the 18.6.60 of Ethniki newspaper, front page, under the heading “son-in-law and father-in-law”.

A. Triantafyllides with L. Demetriades, for the appellant.

G. Pelaghias with D. P. Liveras, for the respondent.

Cur. adv. vult.

The facts sufficiently appear in the judgment of ZEKIA, J. and in the judgment of the trial Court (post).

On the 26th June, 1963, the following judgments were read:

WILSON, P.: In this case I concur in the judgment to be given by Mr. Justice Vassiliades. Mr. Justice Zekia, however, will deliver a dissenting judgment.

VASSILIADES, J.: This is an appeal from the judgment of the District Court of Nicosia dismissing appellant’s libel action on the ground that the publication complained of, does not amount to actionable defamation.

The appeal was strenuously argued before us by learned counsel for the appellant on the various grounds appearing on the notice filed. We have carefully and patiently listened to the argument advanced, bearing in mind that the effects of a libel action may well extend beyond the Court proceedings. And we have considered in consultation the whole case in the light of the argument.

Without disrespect to the very conscientious work of appellant’s learned counsel, I find it unnecessary, and in the circumstances unadvisable, to deal in detail with the [*293] points raised; especially with the publication itself, and the background which gave rise to it, as it appears from the material on the record. It is sufficient to say that I find myself unable to accept the submissions made against the trial Court s rulings on the admissibility of evidence. And that on the material before them the trial Court made in my opinion, the proper approach to the case and reached correct conclusions.

“We have approached this case (the District Court say in their judgment) with the utmost caution, always bearing in mind that both the citizen must be protected from unwarranted attacks by the press and that the freedom of the press, a blessing in any civilized community, must not be unduly curtailed.”

It has not been suggested that this was not the correct approach to the case. We all think it was. And it seems to me that the trial court considered carefully, every aspect of the complaint, in that light. In conclusion the trial Court took the view “that the article complained of is not defamatory of the plaintiff”. I agree with that conclusion. I think that the innuendos alleged, mostly far-fetched in themselves, have not been established to the satisfaction of the Court which has therefore rightly dismissed the action.

The appeal, in my opinion, fails and must be dismissed with costs.

JOSEPHIDES, J.: I agree with the judgment just delivered by Mr. Justice Vassiliades and I have nothing to add.

ZEKIA, J.: The publication complained of reads as follows:

“SON-IN-LAW AND FATHER-IN-LAW.

Naturally there is no intention to question any of the qualifications of the newly appointed president. [*294]

We suppose though that in this Island however retarded the English masters may have been presenting it to be up to this day, other Cypriots qualified and suitable for posts could have been found from outside the circle of the young promising and guided ministers and their in-laws and relations by marriage. But over and above that, there is something else which touches upon the boundaries of a scandal. Mr. Gavrielides is not only a ministerial father-in-law, but he is also importer on a big scale of electrical materials and the presidentship in which he has been elevated is the presidentship of the Electricity Authority which exclusively concerns itself with the generation of electric current and is in need of electrical goods. What will therefore, happen during the daily tenders which the President of the Electricity Authority will be asking from the imparters of electrical goods? This is the question, which is a scandal and for which an answer of the responsible ones becomes an essential necessity not only towards the Cyprus importers, whose wrath is fully justified but also towards all of us who wonder what else lies in store for us.

We shall revert.”

In the first place the trial Court had to rule whether the words complained of in their context were capable of (a) referring to the plaintiff and (b) capable of bearing a defamatory meaning.

If the ruling of the Court was in the affirmative then, this being a trial without a jury, the Court had, on the evidence, to decide whether the publication is defamatory of the plaintiff, and, if so, to consider the defence of justification or fair comment, if any.

The trial Court directed itself correctly in law and found that the article complained of was not defamatory of the plaintiff. The learned Judges constituting the Court in arriving at this conclusion apparently acted on their own reading of the article published unassisted by other evidence adduced by both sides. This I gather to be the case from the following extract from the judgment:

“It is also well settled that a jury and consequently the Judge or Judges sitting without a jury and exercising the functions thereof, are not bound to adopt the opinion of the witnesses regarding the meaning in which they understood the words, and are entitled to form their own opinion on the matter”. [*295]

Earlier in the judgment the Court stated:

“In support of their respective cases, the parties have called a number of witnesses, all eminent citizens the bona fide and integrity of whom we do not doubt”.

The trial Court having chosen to confine itself to the reading of the matter complained of and dispose of the issues involved in the case unassisted by other evidence adduced at the trial, in my view, the door was laid wide open to this Court to do likewise and unfettered to reach its own conclusions by reading the article complained of.

The article is headed “father-in-law and son-in-law” which refers to the plaintiff and a certain Mr. Gavrielides of Nicosia; particular emphasis is given to the relationship between Mr. Gavrielides and the plaintiff by the fact that the article is headed “son-in-law and father-in-law” and by referring not less than three times in one form or other to this relationship in the article. The appointment of Mr. Gavrielides to the Presidency of the Seven-member Committee of the Electricity Authority of Cyprus is described as a scandal on account of facts alleged and reasons stated in the article.

In my view the tenor and purport of the article is that Mr. Gavrielides secured his appointment to the Presidency of the Committee shortly after he became the father-in-law of the Minister of Interior, the plaintiff, having been proposed to the post by His Excellency the President. This appointment, in the light of the alleged facts, is described as scandalous. The imputation is, without reference to any innuendo, therefore, that the person or persons, who are responsible for such scandalous appointment, abused their authority and influence to the detriment of the public by bringing about such an appointment and this is clearly defamatory of the person or persons who brought about this appointment.

As to the person or persons responsible for the appointment of Mr. Gavrielides, express reference is made in the article to His Excellency the President but by giving great emphasis to the relationship between the plaintiff and the person appointed in the said article the plaintiff is also by insinuation implicated and involved in the alleged scandalous appointment. In other words, it may be reasonably inferred from the contents of the publication that Mr. Gavrielides by an act of favouritism was appointed to the post of the President of the Committee which appointment [*296] in the circumstances alleged was a scandalous one. And the authors of this act of favouritism was His Excellency the President and the plaintiff.

I find also the words “young promising guided ministers” occurring in the article as capable of bearing a defamatory meaning and referring to the plaintiff as one of the ministers. The word “guided” (katefthinomenos) means a person who is directed or guided by somebody else and who lacks initiative and principle and he is only a “yesman” receiving orders from above. Therefore, it bears a defamatory meaning when it is addressed to a person entrusted with public duty or likely to be entrusted with such duty such as a ministerial office.

Here we have to take the words in their plain and popular meaning. The article complained of was not dealing with ministerial responsibilities, as provided by the Constitution or otherwise. The heading of the article clearly indicates that this was not the case. We have, therefore, to take the words in their ordinary and popular sense and not in any legal sense and taken in the popular sense, to my mind, are clearly defamatory of the persons referred to.

In my opinion the trial Court ought to have found that the article complained of was defamatory of the plaintiff and proceed to examine the defence of fair comment as pleaded in the statement of defence. In the circumstances I would allow the appeal and remit the case to the trial Court with a view to examining the defence of fair comment and to give judgment in the case.

Appeal dismissed with costs.

JUDGMENT OF DISTRICT COURT.

The judgment dated the 1st November, 1962, of the District Court of Nicosia composed of Loizou and Ioannides, D.JJ., is as follows:-

“The plaintiff by this action claims damages against the defendants for an alleged libel contained in an article published in the issue of Ethniki newspaper of the 18th June, 1960. The said issue is exhibit 1. [*297]

The plaintiff is the present Minister of Labour and Social Insurance of the Republic, but at the time of the publication of the article complained of he was the Minister of the Interior in what was known as the transitional committee.

The 1st defendants, Kyrix Publishing Co. Ltd., are the proprietors of Ethniki; the 2nd defendants, Proodos Printing & Publishing Co. Ltd., of Nicosia, are the printers; and the 3rd defendants, the General Press Agency Poulias & Koniaris Ltd., also of Nicosia, are the distributors.

It is common ground and a notorious fact that Ethniki was at the time a daily newspaper and that it opposed the policy of the transitional government of the Republic.

As stated above, the publication complained of was published in this newspaper in its issue of the 18th June, 1960. It is headed “GAMVROS KE PENTHEROS” and it reads as follows in the original:-

«ΓΑΜΒΡΟΣ ΚΑΙ ΠΕΝΘΕΡΟΣ.

Ουδείς έχει το δικαίωμα να λησμονήση τινί τρόπω ο Τάσος Παπαδόπουλος και οι άλλοι συνομήλικοί του ανεκηρύχθησαν ο μεν πρώτος υπουργός των Εσωτερικών, οι δε άλλοι εις τα υπό κατασκευήν και άνευ εκτελεστικής εξουσίας υπουργεία και τούτο… προ 15 και πλέον μηνών.

Αλλ’ ούτε πάλιν απαρατήρητον δύναται να περάση το γεγονός ότι ο μεγάλος εισαγωγεύς ηλεκτρικών ειδών κ. Γραβριηλίδης, πενθερός (μόλις προ μηνός) του κ. Υπουργού των Εσωτερικών διωρίσθη πρόεδρος της νέας Επταμελούς Επιτροπής Αρχής Ηλεκτρισμού Κύπρου, προταθείς υπό του Εξοχωτάτου Προέδρου.

Δεν υπάρχει φυσικά πρόθεσις να διαμφισβητηθούν τα οιαδήποτε προσόντα του νεοδιορισθέντος προέδρου. Υποθέτομεν όμως ότι εις την Νήσον ταύτην, όσον καθυστερημένην και εάν την παρουσίαζον μέχρι σήμερον οι κυρίαρχοι Άγγλοι, μπορούν να αναζητηθούν και άλλοι προσοντούχοι και κατάλληλοι διά θέσεις Κύπριοι, εκτός του κύκλου των νεαρών ευελπίδων και κατευθυνομένων υπουργών και των πενθερικών και συμπενθερικών των.

Αλλά πέραν τούτου, υπάρχει και το κάτι το οποίον εγγίζει τα όρια του σκανδάλου. Ο κ. Γαβριηλίδης δεν είναι μόνον υπουργικός πενθερός, είναι και μεγαλοεισαγωγεύς ηλεκτρικών ειδών και η προεδρία εις την οποίαν ανεβιβάσθη είναι η προεδρία της Αρχής Ηλεκτρισμού, η οποία ενδιαφέρεται αποκλειστικά εις την παραγωγήν ηλεκτρικού ρεύματος και χρειάζεται ηλεκτρικά είδη. Τι θα γίνεται λοιπόν εις την προκειμένην περίπτωσιν κατά [*298] τας καθημερινάς προσφοράς τας οποίας ο πρόεδρος της Αρχής Ηλεκτρισμού θα ζητή από τους εισαγωγείς ηλεκτρικών ειδών διά ηλεκτρικά είδη;

Ιδού η ερώτησις, η οποία εγγίζει το σκάνδαλον. Και διά την οποίαν μία απάντησις των υπευθύνων καθίσταται επιβεβλημένη ανάγκη τόσον προς του Κυπρίους εισαγωγείς, όσον και προς όλους ημάς τους άλλους, οι οποίοι διερωτώμεθα τι μας περμένει. Θα επανέλθωμεν».

It is in evidence that on the 18th June, 1960, the plaintiff was engaged to the daughter of Mr. Gavrielides, the person to whom reference is made in the above article. It is alleged by the plaintiff (para. 8 of the statement of claim), that by the words published, the defendants meant and were understood to mean:-

(a) that the plaintiff is an unworthy and/or incompetent and/or foul and/or contemptible and/or dishonest and/or corrupt person who had been appointed as Minister of Interior of the Transitional Government by the utilization of dishonest and/or unfair and/or base and/or corrupt means;

(b) that the plaintiff is incompetent and/or unworthy of his post as Minister of Interior and/or a foul and/or a corrupt and/or a dishonest and/or a vile person who contrary to his better judgment follows blindly orders and/or instructions and/or directives and/or that the plaintiff as a Minister carries out orders and/or instructions and/or directives without using his own judgment and/or that plaintiff is a guided Minister and as such a contemptible and/or foul and/or a dishonest person;

(c) that the plaintiff abused his position and/or his post as Minister of Interior by appointing his father-in-law Mr. Gavriel Gavrielides an importer of electrical goods as President of the Electricity Authority, so that the said Gavriel Gavrielides will use the said post in an unbecoming and/or corrupt and/or dishonest way in order to further hi own interests as an importer at the expense of other importers of electrical goods required for the Electricity Authority and/or such appointment has created or is a scandal for which the plaintiff [*299] is responsible and/or that the plaintiff is a dishonest and/or corrupt and/or treacherous and/or vile person”.

We want to state now that no evidence has been adduced in support of the meanings alleged in the last quoted para., that is to say sub-para. (c), nor is, in our opinion, the article complained of capable of the meaning in this last sub-para. contained.

The defendants who have put in a joint defence, admit that they published the article complained of, but they deny that they published or caused to be published same falsely or maliciously or that the said publication is libelous (para. 3 (1) of the defence). They further put up the defence of fair comment by using what is known a “rolled-up” plea (para. 3 (2) of the defence).

In support of their respective cases, the parties have called a number of witnesses, all eminent citizens, the bona fides and integrity of whom we do not doubt.

With a view to establishing malice, the plaintiff has produced a mass of exhibits, mostly articles contained in other issues of the same newspaper. The defendants quite naturally felt bound to refer at length and comment upon each such exhibit with the unavoidable result that the proceedings were protracted.

Two witnesses were called by the plaintiff, who have testified as to the meaning in which they understood the words complained of.

Both of these witnesses have laid special stress on the wording of the 1st para. of the article, i.e. the para. which reads:-

«Ουδείς έχει το δικαίωμα να λησμονήση τινί τρόπω ο Τάσος Παπαδόπουλος και οι άλλοι συνομήλικοί του ανεκηρύχθησαν ο μεν πρώτος υπουργός των Εσωτερικών, οι δε άλλοι εις τα υπό κατασκευήν και άνευ εκτελεστικής εξουσίας υπουργεία και τούτο… προ 15 και πλέον μηνών.»

and also on the last part of para. 3, i.e. on the words:-

«…μπορούν να αναζητηθούν και άλλοι προσοντούχοι και κατάλληλοι διά θέσεις Κύπριοι, εκτός του κύκλου των νεαρών ευελπίδων και κατευθυνομένων υπουργών και των πενθερικών και συμπενθερικών των».

The first of these two witnesses, Mr. Titos Phanos, an advocate and a member of the House of Representatives, testified in chief that he understood para. 1 of the [*300] article to mean that the way the plaintiff and the other Ministers of his age were appointed as Ministers was suspicious, blameworthy and contrary to political ethics and order; and consequently the appointment of the plaintiff was blameworthy.

This witness has further stated that he understood the last part of para. 3 of the article to mean that the plaintiff is Unworthy to hold the post of a Minister and that he is a guided Minister without a free will or initiative and consequently a puppet and a tool in the hands of somebody else and that consequently he is unworthy of exercising the duties of a Minister.

In cross-examination the witness has stated: “The appointment of Ministers in the Transitional Government was done by the then Governor but I would say that the Governor felt bound to accept the seven Greek Ministers proposed by the Archbishop and the three Turkish Ministers proposed by Dr. Kutchuk”. And further down: “It was Archbishop Makarios who elected his Ministers to the Transitional Government. I agree that the first para of the article complained of refers to the way in which the Archbishop selected and proposed the Ministers of the transitional period who were then elected; and to the way in which the Archbishop was made to decide on these persons”.

Cross-examined as to the meaning of the word “Katefthinome” he replied that he understood it to mean this: “I am being led to something by somebody without being able to react against, either on account of incompetence or because I do not want to”.

The second of these witnesses, Mr. Frixos Petrides, a professor of literature and Assistant Headmaster of the Pancyprian Gymnasium, has testified in chief that on reading the article he formed the opinion that the plaintiff is an unworthy and dishonest person and was appointed a Minister under suspicious and dishonest circumstances, of such gravity that the public should never be allowed to forget-(he was obviously referring to the first para. of the article).

With regard to the, meaning of the last part of para. 3, he said: “I come to the conclusion that the words are used in an ironical sense and that the persons described as guided are persons without principle and initiative. [*301]

He further gave it as his opinion that the general impression he formed when reading the article was that the plaintiff is described as an unworthy and a dishonest person and unworthy to hold the office of Minister.

Cross-examined by Mr. Pelaghias as to the meaning of the first para of the article, the witness has stated: “I cannot say that the first para of the article complained of refers only to the way in which the plaintiff and the other Ministers were appointed to their offices. As far as I know the plaintiff and other Ministers of the Transitional Government were de facto appointed by the Archbishop. I do not agree that it refers only to the way in which the plaintiff and the other Ministers were appointed by the Archbishop, but the meaning of this para is connected with the character and moral of the person appointed who is presented as a dishonest person”.

Both witnesses have explained at length the reasons which led them to attach to the words the meaning which they said they did.

It is well established by legal authority that in libel actions where a Judge sits with a jury, it is for the Judge to decide whether the words complained of are either in their natural and ordinary sense reasonably capable of a defamatory meaning or of the meaning ascribed to them in the innuendo where such an innuendo is pleaded. But it is always for the jury to decide whether the wards were in fact so understood or whether that meaning was properly attached to them.

Quite naturally in a case of trial without a jury, the judge or judges who hear the case have to exercise both functions and decide both questions. It is also well settled that a jury and consequently the judge or judges sitting without a jury and exercising the functions thereof, are not bound to adopt the opinion of the witnesses regarding the meaning in which they understood the words, and are entitled to form their own opinion on the matter.

We have approached this case with the utmost caution, always bearing in mind that both the citizen must be protected from unwarranted attacks by the press and that the freedom of the press, a blessing in any civilized community, must not be unduly curtailed.

The first para of the article appears at first sight to bear no relation to the rest of the article or its heading. Its meaning is no doubt ambiguous in that it is open to one of [*302] two constructions, i.e. it might be taken to refer to the persons appointed and the means utilized by them to secure such appointments, or it might be taken to refer to the person who appointed them and his motives and reasons for doing so.

The first alternative construction would, in our opinion, be capable of a defamatory meaning and this especially in view of the opening words of this para.

It is for consideration, therefore, whether this para., read in the context of the whole article, would be understood to bear a defamatory meaning or the defamatory meaning ascribed to it by the two witnesses for the plaintiff.

It is quite clear to us from its tenor that the whole of the article constitutes an attack on the then President elect of the Republic regarding the appointment of Mr. Gavrielides, father-in law of the plaintiff at the time, to the post of Chairman at the Electricity Authority.

Viewing the first para in this light, we have come to the firm conclusion that the attack and criticism are directed not at the plaintiff and the other Ministers but on the person who appointed them and that it concerns not the character or ability of those appointed but the considerations that led to their appointment.

In view of our understanding of this para., we come to the conclusion that it would not reasonably be understood to bear either the defamatory meaning ascribed to it or any defamatory meaning in so far as the plaintiff is concerned.

With regard to the third para of the article and particularly the last part thereof, the word, taken exception to most strongly is the word guided in the expression “Guided Minister”.

Whilst on this point, we want to say that the rest of this para., although ironical on tenor, cannot in our view be capable of a defamatory meaning.

To revert now to the words “Guided Minister”, we feel that the meaning of the words taken in the context can only be that the plaintiff and the other Ministers are guided from above, no doubt meaning the President of the Republic, in the exercise of their ministerial duties; in other words that the ministers, including the plaintiff, are subject to the directions of and have to follow the policy decided upon by their President. [*303]

We fail, however, to see why this should or would be understood to mean that such Ministers are either incompetent or dishonest or without initiative.

We take it that in all Democratic countries, Ministers, whether they be selected from among those elected by popular vote or not, are of necessity bound to be guided by the policy of the head of State, be he a Prime Minister or a President, so long as they remain in office.

But nobody can accuse them of being dishonest or incompetent because they are so guided. It is significant to note that it is not anywhere suggested or alleged that either the plaintiff or any other Minister is being or has been guided to do anything dishonest or against public policy or public interest.

To sum up, we are of the view that the article complained of is not defamatory of the plaintiff and that this action must, therefore, fail.

The action is dismissed with costs of one advocate, to be taxed by the Registrar.

Action dismissed”.

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